NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
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No. 11-4124
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UNITED STATES OF AMERICA
v.
CURTIS SANFORD,
a/k/a HASSEN
Curtis Sanford,
Appellant

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On Appeal from the United States District Court

for the Western District of Pennsylvania
(D.C. No. 03-cr-00015)
District Judge: Honorable David S. Cercone
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Submitted Under Third Circuit LAR 34.1(a)
October 26, 2012
Before: HARDIMAN, GREENAWAY, JR., and VANASKIE, Circuit Judges.
(Opinion Filed: November 8, 2012)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Curtis Sanford appeals the District Courts order denying his motion to reduce
sentence for distribution of fewer than five grams of crack cocaine in violation of 21

U.S.C. 841. Because Sanfords reliance on a retroactive amendment to the United

States Sentencing Guidelines (USSG) is misplaced, we will affirm.
I
We write for the parties, who are well acquainted with the case, so we review only
briefly the essential facts and procedural history.
In 2003, Sanford was convicted of two drug offenses involving crack cocaine. His
initial offense level under 2D1.1(c) of the Sentencing Guidelines was 18, and his
criminal history category was VI. Because Sanford qualified as a career offender under
4B1.1 of the Guidelines, his base offense level increased to 34, which yielded a
Guidelines range of 262 to 327 months imprisonment. The District Court granted
Sanford a downward variance, sentencing him to 150 months imprisonment, to be
followed by a six-year term of supervised release. In 2008, the Sentencing Commission
retroactively reduced the base offense levels for crack cocaine offenses. 1 See USSG app.
C, amend. 706 (effective Nov. 1, 2007) (adjusting Guidelines); id., amend. 713 (effective
Mar. 3, 2008) (making Amendment 706 retroactive). The year after the Commission
adopted Amendment 706, we held that defendants convicted of crack cocaine offenses
but sentenced as career offenders were not eligible for a sentence reduction based on
1

In addition to the 2008 amendments, in 2011 the Sentencing Commission passed

Amendment 750 to the Guidelines, which further reduced the base offense levels for
crack cocaine offenses. USSG app. C, amend. 750 (effective Nov. 1, 2011); id., amend.
759 (effective Nov. 1, 2011) (making Amendment 750 retroactive). Sanford filed his
motion to reduce sentence prior to the effective date of this amendment, and he seeks
relief only under the 2008 amendments.
2

Amendment 706. United States v. Mateo, 560 F.3d 152, 156 (3d Cir. 2009).
Following the adoption of Amendment 706, Sanford moved for a reduction in
sentence pursuant to 18 U.S.C. 3582(c)(2). The District Court denied Sanfords motion,
noting that his sentencing range was controlled by the career offender provisions and the
Booker variance was from the range produced by those provisions and not the sentencing
range produced without them. App 1. This appeal followed.
II 2
Sanford correctly recognized during motion proceedings in the District Court that,
because he was sentenced as a career offender under 4B1.1, Mateo was controlling. On
appeal, Sanford attempts to sidestep Mateo by arguing that his downward variance
indicates that the crack cocaine Guidelines played a particularly important role in his
sentence. This argument flies in the face of United States v. Ware, 694 F.3d 527 (3d Cir.
2012).
In Ware, we held that a defendant who received a variance from the career
offender Guidelines range was ineligible for relief under 3582(c)(2). Id. at 53435. We
reasoned that a sentence reduction is permitted under the plain language of 3582(c)(2)
only to the extent that it is consistent with the Sentencing Commissions policy statement,
USSG 1B1.10. Id. at 53334. Section 1B1.10, in turn, provides that a sentencing
2

The District Court had jurisdiction under 18 U.S.C. 3231, and we have
jurisdiction under 28 U.S.C. 1291. We review de novo a district courts interpretation
of 3582(c)(2), as well as its interpretation of the Sentencing Guidelines. United States
v. Flemming, 617 F.3d 252, 257 (3d Cir. 2010); Mateo, 560 F.3d at 154.
3

reduction is appropriate only where a retroactive amendment lowers the defendants

applicable guideline range. Id. at 531. Because the commentary to 1B1.10 explicitly
states that a defendants applicable guideline range is calculated before consideration
of any departure provision in the Guidelines Manual or any variance, USSG 1B1.10
cmt. 1(A), a defendant who received a variance from the career offender Guidelines may
not receive a reduction under 3582(c)(2). Ware, 694 F.3d at 53132.
Sanford attempts to distinguish Ware by noting that it dealt with the 2011
amendments to the Guidelines, id. at 530, while Sanford was sentenced under the 2008
amendments. Even if we were to agree with Sanford and remand the case for
resentencing, the 2011 amendments would apply and Ware would require the District
Court to affirm Sanfords sentence. See USSG 1B1.10 cmt. n.6 ([T]he court shall use
the version of this policy statement that is in effect on the date on which the court reduces
the defendants term of imprisonment as provided by 18 U.S.C. 3582(c)(2).).
Accordingly, we will affirm the order of the District Court denying Sanfords motion for
a reduction of sentence.